The 3 Real Problems With Drone Strikes

It’s frustrating to see how muddled the debate over drones has become. Some people are wondering why we’re all so concerned over a new vehicle that delivers bombs, as opposed to planes. No, no, that’s not it at all. Drones don’t kill people, the U.S. government kills people. It’s just a tool. The problem isn’t the tool; the problem is how we are using it.

So, in order to clear up the confusion let me just state the three biggest problems with how we are using the drone program.

1. We have used drones to execute U.S. civilians without a trial. In the case of Anwar al-Awlaki, the government seems to be indicating he was a really important operational leader for al-Qaeda. Their evidence for that — nothing. At least nothing they have presented to the public or any other branch of government. The old saying is that you could indict a ham sandwich, but apparently they couldn’t indict Awlaki.

Does that mean our government couldn’t produce any evidence at all on this supposed terrorist mastermind, or has such disdain for any other branch of government that they think it’s beneath them to show a shred of evidence to a court before they order the execution of a U.S. citizen?

In the case of the other two U.S. citizens who were killed, including Awlaki’s 16 year-old son who was struck in another bombing, the government refuses to say whether they meant to kill those citizens or if it was an accident. Shouldn’t we at least know if assassinations of U.S. citizens are done on purpose or accidentally (by the all-knowing, all-wise executive branch)?

At the end of the Civil War, Lambdin P. Milligan, a United States citizen, was arrested in his Indiana home, tried before a military commission, and sentenced to death on a number of charges including “[a]ffording aid and comfort to rebels against the authority of the United States”. Ex parte Milligan, 71 U.S. 2, 6 (1866). Milligan petitioned for a writ of habeas corpus and the case went all the way to the Supreme Court. The Supreme Court held that the military commission had no jurisdiction to try or sentence Milligan. Even in a time of war, Milligan was entitled to his due process rights under the Fifth Amendment of the U.S. Constitution. Nearly 150 years later, the U.S. finds itself embroiled in another time of war. Advances in military technology such as drones have greatly enhanced the government’s ability to conduct lethal operations anywhere in the world without ever having to put a single American soldier on the ground. Paradoxically, it is exactly these new advances in military technology that have dredged up a longstanding, yet important conflict between balancing national security with constitutional protections of due process.

The conflict between national security and due process recently regained national attention with the leaking of a Department of Justice White Paper. The White Paper detailed the legal framework under which the government can lawfully order lethal operations against a United States citizen who is outside a recognized battlefield and believed to be a “senior operational leader” or an “associated force” of al-Qa’ida. It concluded that when an informed high-level U.S. official determines that (1) a U.S. citizen poses an “imminent threat” of violent attack, (2) capture of the citizen is infeasible, and (3) the operation can be conducted consistently with law of war principles, lethal force does not violate international or domestic law. The White Paper expressed the latest of a long series of arguments put forth by the Obama Administration justifying its practice of requiring minimal due process procedures before taking lethal action against U.S. citizens far from the combat zone. In fact, as early as 2010, Harold Koh, Legal Advisor to the U.S. State Department, stated that a nation “engaged in an armed conflict or legitimate self-defense is not required to provide targets with legal process before the state may use lethal force…” In 2012, Attorney General Eric Holder in his address at Northwestern University declared that the President is not required to go through a federal court in order to take action, “The Constitution guarantees due process, not judicial process.” What is most striking about the Obama Administration’s collective arguments is the wide discretion afforded to the Executive Branch and the inchoate analysis of the constitutional expectations due process requires from each branch of government.

There are two components of due process: fair notice and the opportunity to be heard. The fundamental rationale behind due process is to check against arbitrary government action. At its core, due process is an amalgamation of what makes the separation of powers a powerful American ideal. The Legislative branch writes the laws—including the ones that dictate charges available against U.S. citizens—that the Executive branch enforces by bringing citizens in violation of the law to be tried before an impartial Judicial branch that the Constitution itself or the Legislative branch has established. Times of national crisis will necessarily render some procedures of due process more elastic than times of peace. Indeed, the Supreme Court has recognized that in certain cases the procedures for due process must be narrowed in times of national crisis. For example, in Ex ParteQuirin, during World War II, the Court upheld the constitutionality of trying a U.S. citizen for offenses against the laws of war in front of a military commission rather than a jury. See Ex parte Quirin, 317 U.S. 1 modified sub nom. U.S. ex rel. Quirin v. Cox, 63 S. Ct. 22 (U.S. 1942). At the same time, the Court has also recognized that “[w]hatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake.” Hamdi v. Rumsfeld, 542 U.S. 507, 536 (2004).

The Hamdi opinion, which the DOJ White Paper cited, also recognized the need to balance the constitutional guarantee of due process with the Executive branch’s responsibility to keep the nation secure. Thus, in evaluating the constitutional protections afforded a U.S. citizen captured and deemed an “enemy combatant” by the U.S. military, the Hamdi Court used a balancing test that it had employed 28 years prior in Mathews v. Eldridge. The Mathews Court stated that the proper test for evaluating how much due process is required is the consideration of three factors: “First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest…”.Mathews v. Eldridge, 424 U.S. 319 (1976). The DOJ White Paper conceded that “no private interest is more substantial” than the interest in avoiding erroneous deprivation of life. White Paper at 6. However, the DOJ reasoned that the government interest in ensuring national security by using force on those that pose an “imminent threat of violent attack” is compelling. As such, the DOJ concluded that the “realities of combat” justified the force rendered necessary to meet those realities. In fact, the DOJ White Paper quoted the Hamdi decision, “due process analysis need not blink at those realities.” Hamdi, 542 U.S at 531. However, this use of Hamdi is disingenuous. The “realities” the Court referred to were the necessities of detaining enemy combatants rather than the use of force.[1]

The DOJ White Paper’s use of Hamdi to justify drone strikes outside recognized combat zones is increasingly suspect due to the fact that Hamdi emphasized that petitioner Hamdi was captured in a foreign combat zone. In doing so, Hamdi refered to Ex Parte Milligan, the aforementioned Supreme Court case regarding the constitutionality of military commissions during the Civil War. The Milligan Court held that despite being in a time of declared war, the military commission had no jurisdiction to try and sentence Milligan. The Hamdi Court reasoned “[h]ad Milligan been captured while he was assisting Confederate soldiers by carrying a rifle against Union troops on a Confederate battlefield, the holding of the Court might well have been different”. Hamdi, 542 U.S. at 522. Indeed, the Milligan Court pointed to the fact that in Indiana “…there was no hostile foot…[and] so in the case of a foreign invasion, martial rule may become a necessity in one state, when in another, it would be “mere lawless violence.” Milligan, 71 U.S. 2 at 126-27. The Court in both Hamdi and Milligan implicitly acknowledged the importance of recognized combat zones as a potential check on the Executive branch’s expansive war powers.

Obama to reveal more on drone strike policy -U.S. attorney general

(Reuters) – President Barack Obama will soon reveal more about the administration’s legal rationale for using drone strikes, U.S. Attorney General Eric Holder said on Wednesday.

Holder told members of the Senate Judiciary Committee that Obama would address the issue directly “in a relatively short period of time.”

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Congress has been seeking access to at least 11 memos produced by the Justice Department’s Office of Legal Counsel that lay out the legal rationale for using drone strikes to target individuals overseas, but until this week had only been allowed access to four of them.

“I heard you. The president has heard,” Holder said. As a result, the administration is prepared to make more materials available, he said.

The Obama administration has increasingly used drone strikes to target militants overseas. In 2011, for example, strikes in Yemen killed U.S.-born Anwar al-Awlaki, accused of being a leader of al Qaeda’s Yemen-based affiliate, and his son, also a U.S. citizen.

Civilian casualties from drone strikes have angered local populations and created tension between the United States and Pakistan and Afghanistan. Washington has sought to portray civilian casualties as minimal, but organizations that collect data on these attacks put the number of civilians killed in the hundreds.

“We have talked about a need for greater transparency,” Holder told senators.

He predicted there “would be a greater level of comfort” about the use of drones after the information is shared.

On Tuesday, as part of a deal that led the Senate Intelligence Committee to approve the nomination of John Brennan as the new director of the CIA, the administration agreed to share two more of the documents with committee members and some staffers.

America is shamed that only Rand Paul is talking about drone executions

Senator Rand Paul during his 13-hour talking filibuster insisting that Obama administration provide stronger assurances that US citizens will never be killed by drone attack on US soil. Photograph: AP

You could say that a filibuster occurs when a senator drones on and on. The problem with the US Senate was that there were too few senators speaking about drones this week.

President Barack Obama’s controversial nomination of John Brennan as director of the Central Intelligence Agency was held up Wednesday afternoon by a Senate filibuster. The reason: Brennan’s role in targeted killings by drones, and President Obama’s presumed authority to kill US citizens, without any due process, if they pose an “imminent threat”. The effort was led by Tea Party Republican Rand Paul of Kentucky, joined by several of his Republican colleagues. Among the Democrats, at the time of this writing, only Senator Ron Wyden of Oregon had joined in the genuine, old-fashioned “talking filibuster”, wherein the activities of the Senate floor are held up by a senator’s speech.

Members of Congress, tasked with oversight of intelligence and military matters, have repeatedly demanded the memoranda from the White House detailing the legal basis for the drone program, only to be repeatedly denied. The nomination of Brennan has opened up the debate, forcing the Obama administration to make nominal gestures of compliance. The answers so far have not satisfied Senator Paul. Nearing hour six of his filibuster, Senator Paul admitted:

“I can’t ultimately stop the nomination, but what I can do is try to draw attention to this and try to get an answer … that would be something if we could get an answer from the president … if he would say explicitly that noncombatants in America won’t be killed by drones. The reason it has to be answered is because our foreign drone strike program does kill noncombatants. They may argue that they are conspiring or they may someday be combatants, but if that is the same standard that we are going to use in the United States, it is a far different country than I know about.”

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